StopGateKeeper

July 28, 2000

Doris Meissner, Commissioner
Immigration & Naturalization Service
425 "I" St., N.W., Room 6100
Washington, D.C. 20536

Dear Commissioner Meissner:

When the strategy of moving the undocumented foot traffic to the east of San Diego got underway, a Border Patrol supervisor was quoted as saying: “eventually we’d like to see them [migrants] all out in the desert.”^[1] This has almost come to pass. The proof is not only in the soaring Yuma and Tucson sector apprehensions figures, but in the number of lives the Arizona border is claiming. According to your own statistics, deaths along that nearly 360-mile stretch climbed from 19 in FY 1998 to 39 in FY 99 -- a 105% jump. Moreover, the INS “overview of migrant deaths” for the first three quarters of FY 2000 shows that 72 deaths were recorded in Arizona from October 1^st to June 15^th, and the hottest month is just ahead.^[2]

As you know, Operation Gatekeeper has generated a side issue in the Tucson sector: border ranchers, e.g., the notorious Roger Barnett and his brother, are taking matters into their own hands. Armed and, on some occasions, reportedly wearing military style fatigues with “Ranch Patrol” insignia, they have been detaining those who cross their lands and holding them at gunpoint until Border Patrol agents arrive.^[3] According to press reports, some of these arrests have turned violent — reviving memories of 1997, when California border ranchers rounded up migrants for the Border Patrol, sometimes pistol whipping and otherwise beating the migrants before turning them over to your agents. This was a subject of much correspondence between the San Diego Border Patrol Chief and me, as massive illegal crossing materialized in the eastern part of the county. Due largely to the intervention of the then-Sheriff, Bill Kolender, vigilante actions were curbed.

As you have rightly stated, the Arizona ranchers do “have legitimate concerns about trespassers” and the damage which sometimes accompanies the trespass (from litter and broken water pumps, to cut fences and lost cattle).^[4] The problem is that the ranchers are openly violating state and federal laws in the process of asserting their property rights. And your agency has been sending a troubling message in the face of such vigilanteism.

The Immigration and Naturalization Service’s continued toleration, if not condonation, of ranchers deputizing themselves as Border Patrol agents has implications for California. In a recent Arizona Republic article, East San Diego County ranchers said that the undocumented foot traffic through their area is rising, and wondered how long it will take for them to be “overwhelmed” again.^[5] My concern is that California border ranchers like Bob Maupin, who a few years ago boasted to the New York Times about impersonating Border Parol agents (not to mention, striking “uncooperative” migrants), will feel that they can recommence their activities with impunity.^[6]

Considering the politics involved, the local and federal responses were predictable. First, Cochise County Sheriff Larry Dever, who calls migrants “eco-terrorists,” stated categorically that Douglas ranchers are violating no state law in making citizen’s arrests.^[7] The opposite is true from my vantage point. While ranchers (armed or not) can indeed patrol their property, the Arizona Penal Code does not empower them to make citizen’s arrests for third degree trespass, let alone use deadly force to effectuate the arrests.^[8] In any event, there are reports that the apprehensions are not confined to private property. Arizona ranchers have also detained suspected illegal immigrants on Highway 80 — obstructing interstate commerce.^[9]

Second, you defended the citizen’s arrests on dubious trespass grounds, although the ranchers readily admitted that they made the arrests for suspected illegal presence in the country. Why else would they regularly summon Border Patrol agents instead of Cochise sheriff’s deputies? Finally, Tucson sector Chief David Aguilar delivered an equivocal warning, i.e., a letter sent three months ago, letting Mr. Barnett know that his actions “could potentially be construed as illegal arrests of illegal immigrants.”^[10] (Emphasis added.) Apparently, the ranchers have been making these arrests for years, which raises the question of why it has taken so long (not to mention, a spate of news stories) for the warning, such as it was.

Judging from Mr. Barnett’s July 14^th appearance on Fox television’s “The O’Reilly Factor,” he has no intention of changing his modus operandi.^[11] And despite the assurances given by Sheriff Dever and Chief Aguilar during a recent visit to Capitol Hill that the situation in Douglas has been defused, it has taken another ominous turn. There are reports that a Texas group is recruiting volunteers to help Arizona ranchers detain migrants. Calling itself “Ranch Rescue,” the group is scheduling a trip to Douglas in the Fall, to assist with supposedly “lawful apprehensions” for trespass.^[12] Not surprisingly, Douglas will figure prominently at an upcoming “summit” convened by various Latino organizations to discuss border hot spots.^[13]

Citizen’s Arrest for Trespass

The opportunities for a citizen’s arrest are very limited. Under Arizona law, in order for private persons to make arrests, they must witness a felony or a misdemeanor which amounts to a breach of the peace.^[14] While the trespasses at issue may well be misdemeanors, they do not constitute breaches of the peace.^[15] That requires disorderly conduct such as engaging in violent fighting or making unreasonable noise.^[16] In short, if (as you have said) the basis for the citizen’s arrests is trespass, the arrests are wrongful. Moreover, even if the arrests were rightful, the use of deadly force is not justified. That kind of force can only be used when and to the extent that a reasonable person believes it immediately necessary for self-defense or the defense of a third person, or in defense of premises, meaning a structure “adapted for human residence.”^[17] None of the dozens of newspaper articles I have read on Douglas describe hostile acts by a migrant which might be regarded as placing the ranchers, or anyone else, in imminent danger of losing their lives or sustaining great bodily harm. In fact, Mr. Barnett himself claims no threats against his life.^[18] Furthermore, from all accounts, criminal trespasses (whether attempted or committed) on ranchers’ homes are rare.

Citizen’s Arrest to Enforce Immigration Laws

In mid-May, Mr. Barnett bragged that he had turned over “probably between two and three thousand illegals” -- 174 in one recent weekend, alone. He said that on various occasions he was told by Border agents responding to his radio calls that “[e]very American citizen ought to be doing...[the same] for his country.”^[19] Not so.

The validity of a citizen’s arrest for a federal crime is governed by the law of the state where the arrest is made.^[20] As seen above, Arizona follows the common law. Therefore, in the case of a misdemeanor, a valid citizen’s arrest requires that the offense amount to a breach of the peace, and that it be committed in the presence of the person making the arrest.^[21] Of course, a citizen’s arrest can also be made if there is reasonable ground to believe that a felony has been committed.

It seems that Mr. Barnett’s ranch does not even have any frontage at the border, i.e., he does not witness the unauthorized entries.^[22] Putting aside the intricacies of when an illegal entry is actually consummated, the misdemeanor described in U.S.C. §1352(2) does not fit the bill for a breach of the peace crime.^[23] Given that the aim of the illegal entrant is to get across the border undetected, it stretches one’s imagination to conjure up scenarios in which illegal entry would be accompanied by a breach of the peace. As for the felony of illegal reentry, a continuing offense, it is implausible that a private person will have sufficient information to believe that a particular migrant has entered illegally for a second or subsequent time, much less that he or she had been deported or excluded.^[24] In any event, as pointed out above, nobody at the I.N.S. claims that the arrests are for anything other than trespass.

It is fine for the ranchers to be the Border Patrol’s eyes and ears, but they should not be allowed to do the rest of the Border Patrol’s work, i.e., stop, question, detain or arrest for violations of immigration laws.^[25] Even local police can only enforce the criminal provisions of immigration laws. To cite the Service’s own statement on the matter, there is no authority for anyone other than an immigration officer to conduct a search or seizure for civil violation of immigration laws.^[26] Simply put, Border Patrol agents should not encourage or assist the ranchers in violation of Service policy, not to mention countenance complicity in illegal conduct. Before responding to calls from ranchers, the Border Patrol should require them to justify the detentions or arrests. If the offense is trespass, your dispatchers should refer the callers to sheriff’s deputies, who can inquire into someone’s immigration status when he or she is suspected of a non-immigration crime. And if the basis for custody is instead the belief that the person being held is illegally in the U.S., the ranchers should be advised that there is no legal basis for a private person to hold him or her, i.e., false imprisonment is at play.

Vigilanteism in Arizona was a topic of much conversation at the National Council of La Raza’s annual conference in early July. The border deaths were too, especially since the conference was held in San Diego, the testing ground for your “channelization” strategy. As the participants were made aware, so far this year the border deaths in the San Diego sector have already topped the 22 border deaths during all of 1999.^[27] In the course of talking to National Council of La Raza staff about the desert deaths, I was told that Border Patrol agents in the Tucson sector had threatened residents who made drinking water available to migrants. These Good Samaritans were advised that they could be charged with harboring illegal aliens. I doubt this kind of “succor” is prosecutable. Be that as it may, a sector with an already distressing history (agent Michael Elmer et al.) has reached a new low. Of course, such a stance on drinking water flies in the face of your pronouncement that “[p]rotecting our borders includes the obligation to protect lives.”^[28] Although no amount of life-saving measures can offset a strategy of putting migrants in mortal harm’s way, efforts by individuals to prevent fatalities should not be discouraged. In any event, it seems that Rep. Duncan Hunter’s brother, John, may have come up with a better idea than many of the lifesaving proposals I have read about in INS news releases. He has erected shade shelters in the Imperial desert and replenishes the water he leaves at the shelters.^[29] Mr. Hunter seems to be having problems with the Bureau of Land Management, but I certainly hope that he will have none with the Border Patrol.

^[1] See “Shifting to the East: U.S. Fights to Close Gaps from Otay to Jacumba,” San Diego Union-Tribune, May 26, 1996.
^[2] The Mexican Foreign Relations Officer puts the Arizona death toll at 53 from January 1^st through July 27^th, as compared to 44 in the whole of last year. Of course, non-Mexicans have died there, too.
^[3] See, e.g., “What Border Patrol does not do, locals do,” Chicago Tribune, 5/12/00. I understand that the Mexican Consulate in Douglas has documented at least 25 instances of armed detentions over the past year. See, e.g. “Texans offer to help curb Arizona ranch trespasses,” Arizona Daily Star, 6/28/00.
^[4] See, e.g., “INS defends ranchers in detaining of migrants,” Los Angeles Times, 5/19/00.
^[5] See “Gatekeeper forced illegals farther east; California relates to Arizonans’ woes,” Arizona Republic 5/8/00. As you know, apprehensions in the Campo and Boulevard stations reached their peak in FY 1997. Ever since, they have accounted for about one-third of the San Diego sector’s apprehensions. The Border Patrol’s apprehension figures for the San Diego sector show that the Campo and Boulevard stations reclaimed the first spot during FY 1999, with 34.63% of the apprehensions. From then on, they have accounted for about one-third of the San Diego sector’s apprehensions.
^[6] See “Border Vigilantes,” New York Times, 5/11/97. Mr. Maupin was quoted as follows: “if you dress properly, they [illegal border crossers] don’t know who you are, so you get really, really good cooperation.” He was slightly more coy about how he handled “illegals” from whom he didn’t get “good cooperation”: “we live in an earthquake zone, and the last guy who got in my face, the ground shook so hard it knocked him on his back, if you see what I mean."
^[7] See, e.g., “Armed rancher acts as one-man border patrol,” USA Today, 4/28/00.
^[8] I assume that the firearms are not illegal and that the ranchers are complying with all other relevant federal gun control provisions, e.g., on prohibited possessors.
^[9] See, e.g., “Armed rancher acts as one-man border patrol,” USA Today, 4/28 /00.
^[10] For example, Chief Aguilar has been cited as saying that he is aware of some 32 incidents in the past eight months of ranchers apprehending “suspected illegal immigrants.” See “Armed volunteers recruited to repair entrants’ damage,” Arizona Daily Star, 7/1/00.
^[11] The June 26, 2000 issue of Time described how Mr. Barnett (armed with an M-16 rifle) catches “illegals” after tracking them for miles, whereupon he radios the Border Patrol to “cart them off his land.” Sounding like East San Diego County’s Bob Maupin, he recounted an incident “a few weeks back” in which “one fellow tried to get up and walk away saying we’re not immigration.” (Emphasis added.) Mr. Barnett reacted to this “defiance” as follows: “So I slammed him back down and took his photo. ‘Why’d you do that?’ the illegal says, all surprised. ‘Because we want you to go home with a before picture and an after picture -- that is, after we beat the s___ outta you.’ You can bet he starting behavin’ then.” According to Mr. Barnett, there are always one or two who are defiant, which multiplied by all the groups he boasts of having detained, could make for a lot of assault and battery in the course of holding people for the Border Patrol.
^[12] The group plans to travel to Arizona in mid-October. See “Armed volunteers recruited to repair entrants’ damage,” Arizona Daily Star 7/1/00. John Foote, the head of Ranch Rescue, is quoted as saying that the volunteers will “gladly assist [the ranchers] in apprehending any criminal trespassers.” Although the group professes not to be concerned with illegal immigration, the justification for Texan involvement is that the problem in southeastern Arizona “threatens more than just the local ranchers, it ultimately threatens our entire American way of life.” The group’s web site, www.ranchrescue.com, says the volunteers will “actively protect the private property of Arizona ranchers.” The volunteers are encouraged to take firearms to Douglas. In fact, “[e]veryone going to Douglas [will receive] advanced firearm training.”
^[13] See “Indifference over border abuses denounced,” La Opinión, 7/19/00.
^[14] ARS §13-13884.
^[15] At best, they are trespass in the third degree. ARS §13-1502 defines criminal trespass in the third degree as “knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry.” The presence of livestock does not make the trespass a felony or even a higher degree of misdemeanor. See ARS §13-1503 and §13-1501(3).
^[16] ARS §13-2904.
^[17] ARS §§13-405 to 13-407.
^[18] See “Rancher Roger talks of aliens,” Hispanic Link Weekly Report, 5/15/00. During his July 14^th appearance on Fox television’s “The O’Reilly Factor,” Barnett repeated that neither he nor his family have felt endangered.
^[19] “Rancher Roger talks of aliens,” supra.
^[20] See, e.g., U.S. v. Montos (5th Cir. 1970), 421 F.2d 215, 224. See, also, the U.S. Dept. of Justice’s “The Law of Arrests, Search, and Seizure for Immigration Officers,” M-69, Sec. VII, B-2, fn. 3: “A state or local police officer making an arrest for a violation of federal criminal law, such as the criminal provisions relating to immigration and naturalization, should, in the absence of a governing federal statute, follow the arrest procedure prescribed by the law of the state where the arrests take place....He is not specifically authorized to make arrests under immigration laws, but he has the same powers of arrest as a private person, and the validity of the citizen’s arrest is governed by the law of the state where the arrest is made.”
^[21] The only exception to the breach of the peace requirement is the wholly inapplicable “shopkeeper’s privilege” which enables merchants to recapture their stolen property by detaining suspected shoplifters for questioning or summoning law enforcement. ARS §13-805.
^[22] See “Rancher Roger talks of aliens,” supra. In response to the question about how much frontage he had on the border, Mr. Barnett answered: “Well, on the border, I don’t have any frontage at all, none at all. I’m two miles from the border on [the closest] side.”
^[23] The commission of the crime is completed whenever the illegal alien reaches a place of even temporary rest within the country.
^[24] See 8 U.S.C.S. §1326 (a).
^[25] It should be noted that the Border Patrol has no trouble gaining access to these ranches, as it is authorized to enter lands within 25 miles of the border to prevent illegal entry into the country.
^[26] See M-69, the Law of Search and Seizure for Immigration Officers.
^[27] According to the Mexican Consulate in San Diego, 25 migrants have died so far this year in the San Diego sector, including three non-Mexicans.
^[28] See “INS Intensifies Life-Saving Measures Along the Southwest Border,” INS News Release, 6/26/00.
^[29] See “Despite efforts, illegal immigrant deaths increasing,” Imperial Valley Press, 6/23/00. Another article on John Hunter’s efforts appeared the day before yesterday. See “Oases created for illegal immigrants,” San Diego Union-Tribune 7/26/00.

Meissner 7-28-00